The law of tort: an analysis - Essay Example

?THE LAW OF TORT: AN ANALYSIS Introduction Tort is a French word which means wrong Thus, tort law is the law of wrongdoing or perhaps of wrong.2 A tort is not a criminal wrong although the two concepts have much in common and may often overlap; conversely, tort law establishes the conditions in which an individual whose interests have been jeopardized by another can be compensated through the civil courts.3 This paper endeavours to explore the concepts related to the Law of Tort specifically its relation to the medical profession. This paper also deems to critique the statement: Considerable deference is, however paid to the practices of the professions (particularly the medical profession) as established by expert evidence and the court should not attempt to put itself in the shoes of the surgeon or other professional person,4 as guided by underpinning theories. Definition of Tort and Tort Law The word tort is derived from the Latin word tortus which means twisted.5 The term was also used to mean wrong and it is still utilized in French in the phrase: J’ ai tort meaning I am wrong.67 Likewise, in English, the word tort has a purely technical definition which is a legal wrong for which the law offers a solution.8 Conversely, Black’s law dictionary defines a tort as a private or civil wrong or injury for which a court will provide a remedy in the form of an action for damages.9 Tort law is only one part of the civil law of obligations.10 Tort law is not in general concerned with contracts; hence, it if frequently labelled as the extra-contractual law of liability.11 In the formative age of the nineteenth century, the line between tort and contract was viewed as the main division in civil law; later, Sir Percy Winfield was the one responsible to draw on this distinction, defining tort law as the breach of an obligation imposed by the law, a meaning that aligns tort and crime.12 Moreover, tort law is also defined as a body of rules establishing specific injuries uncoordinated by general principles.13 Conversely, Sir Percy view negligence as a unifying thread for tort law.14 Tort law is the law of compensation for accidents that involve damage to a person or property.15 The task of tort law as defined by Fleming is determining only whether a specific loss sustained by an individual should be left to lie where it fell or should be shifted to someone else branded as a tortfeasor.16 The Traditional Tort System The major aims of tort law appear to be prevention of wastefully risky conduct and compensation of accident victims injured by overly risky behaviour; hence, tort law is viewed as a means that serves ends outside itself.17 The traditional medical malpractice tort law endeavours at helping to keep doctors on the right track by pressuring them to comply with the standards of their profession.1819 Toward this objective, negligence is defined in terms of the general concept standards of the medical profession and each case is then resolved on its own specific facts where juries determine not only what happened but also what is the suitable standard.20 The DCE System In comparison with traditional tort, the DCE system aims more at compensating the victims of adverse medical outcomes; in addition, it maintains a commitment to preclusion by defining compensable circumstances in terms of adverse outcomes that healthcare providers may control through the exercise of care.21 Hence, the DCE approach compensates victims not only when to do so but also raise the level of care among health care providers; furthermore, it is concerned with the reduction of transaction costs.22 Legal Concepts and the General Principles of the Duty of Care Giving emphasis on tort law, the common law states that the plaintiff, or injured person who brings a suit, must prove four elements in order to gain compensation from the person who injured him or his property called the tortfeasor23 or who is also labelled as the defendant.24 The first element that one must show is that the tortfeasor had a duty to conform to a specific standard of care.25 Second, the plaintiff must provide evidence that the tortfeasor failed to obtain the mandated standard of care.26 Third, the plaintiff must establish that there was an actual injury and finally, the plaintiff must demonstrate a link known as the proximate cause between the failure to fulfil the standard of care and the injury.27 Statement Analysis After gaining insight on the concepts surrounding tort law, it is fitting to analyze one of the known statements with regards to tort law in lieu of the context of the standard of care and that is, Considerable deference is, however paid to the practices of the professions (particularly the medical profession) as established by expert evidence and the court should not attempt to put itself in the shoes of the surgeon or other professional person.28 This statement emphasizes that significant reverence and respect should be given to the practices of a variety of professions specifically the medical profession hence, the court should not try to be in the position of the surgeon or other professional individual. The aforementioned statement is in accordance with the principle: the standard of care for experts, which highlighted that the standard of care expected from professionals is not a higher standard; rather the standard remains one of equanimity under the conditions.2930 However, what is reasonable for a professional is not the same as what is reasonable for a layperson.31 Rather, a professional is held to an exclusive form of the fundamental reasonable person standard for the reason that in addition to that degree of care; they are expected to possess a higher degree of skill, care and learning than the average person at least in the area of his or her profession.32 Generally, professionals are entailed not only to exercise reasonable care in what they do, but also to acquire and employ a standard minimum of special knowledge and ability within their specific areas of expertise.33 Hence, as implied by this, no individual can speak for the actions and the decisions made by the medical professional, also the court cannot put themselves in the place of the medical professional for the mere reason that specifically they do not share the same expertise as that of the surgeon or any other health professional. The court even though has knowledge on the law; they are not in particularly familiar with the scope and standards of medical practice. Conclusion The tort law is mainly concerned on the compensation for any damage incurred on a person or property. A variety of concepts are necessary to gain an understanding of the law of torts. With regards to the medical profession, tort law is commonly focused on the liability of the medical professional in the injury that resulted from treatment provided. However, the court respects that there are specific standards that the medical professional upholds with regards to the decisions and actions he or she makes concerning the treatment of the patient; thus, courts have traditionally felt that they could trust the medical profession to set their own standards.34 Moreover, courts continue to defer to professional custom regarding how the different medical procedures should be performed35 and do not attempt to make judgement without considering such standards for the reason that they do not share the same expertise and standards. References Baez, B. (2010) Tort Law in the USA. Great Britain: Kluwer Law International. Baudouin, J.L. and Linden, A.M. (2010) Tort Law in Canada. Great Britain: Kluwer Law International. Harlow, C. (2005) Understanding Tort Law. London: Sweet & Maxwell. Harpwood, V. (2009) Modern Tort Law. Oxon: Routledge-Cavendish. Koziol, H. and Steininger, B.C. (2008) European Tort Law. Germany: Springer-Verlag. Madden, M.S. (2005) Exploring Tort Law. United States of America: Cambridge University Press. Morisette, E.L. (2009) Personal Injury and the Law of Torts for Paralegals. New York: Aspen Publishers. Rogers, W.V.H., Winfield, P.H. and Jolowicz, J.A. (2010) Winfield and Jolowicz on Tort. London: Sweet & Maxwell. Rostow, V.P. and Bulger, R.J. (1989) Medical Professional liability and the delivery of Obstetrical Care. Washington, D.C.: National Academy Press. Vevaina, J.R., Bone, R.C. and Kassoff, E. (1989) Legal Aspects of Medicine. [n.p.]: Springer. Read More